Tips on How to Respond to a Subpoena

Posted on September 12, 2014 at 11:22 am by James B. Kinsel

There are as many important issues relating to the rights of the business that receives a subpoena as the rights of the litigation parties. While a subpoena is a court-ordered document which compels a response and cannot just be ignored, the way in which a company responds to the subpoena may be more flexible than most people think. There are several factors to consider when a company receives a subpoena, and a knowledgeable business litigation attorney can provide significant aid in determining the best way to respond to a subpoena.

A company’s response may be more limited than what was requested if the subpoenaed party has grounds to object to the requests, in part or even entirely. A partial or customized response can be negotiated even without formally objecting.

For instance, if a subpoena requests certain documents and those documents contain personal employee information, such as social security numbers, a business may decide to redact the confidential information. In this instance, the personal information is actually “blackened out” so that it is no longer visible and the redacted documents can then be produced.

Use the Court as a Resource

If the subpoena requests documents that contain business trade secrets, a company can use the court as a resource to help protect the information. A court could order that those documents be marked confidential or that certain documents need not be produced because their value in the litigation is outweighed by the need to protect the businesses’ trade secrets.

There is no hard rule on how a court can respond to a company’s request for assistance upon receiving a subpoena. If a motion to quash the subpoena is filed, the whole subpoena could be thrown out if a good reason exists. A court’s ruling can be flexible and customized to fulfill the needs of the subpoenaed company and the parties to the lawsuit. A court may decide that a party to the lawsuit is only entitled to certain documents it is requesting in the subpoena, not all of them. It could be beneficial to have an attorney to file a motion and appear in court to get a court order to narrow the scope of the subpoena.

If a company is concerned with any documents containing privileged information, they should review all documents to determine which are privileged and withhold them from production. If thousands of documents are requested in a subpoena, it may take many hours for this review to take place. In some instances, a company can collect money for a privilege review from the party requesting the documents.

There is also the possibility that a court appearance may not even be necessary – an attorney could simply talk to the attorney who issued the subpoena to try and negotiate a more tailored response.

Be Careful Not to Waive Attorney-Client Privilege

A company should also ensure they are not waiving any attorney-client privilege by outright producing all documents requested in the subpoena. If a communication between the company and the company’s lawyer is produced to a third party, the attorney-client privilege can be destroyed. It is important to have advice from an attorney regarding when a privilege exists and how to maintain it.

In summary, there are many different actions available when a subpoena is received. Companies should consider engaging counsel to help them determine how to respond to a subpoena, what to produce and their options.